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Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-24294 May 3, 1974


DONALD BAER, Commander U.S. Naval Base, Subic Bay, Olongapo, Zambales,
petitioner,
vs.
HON. TITO V. TIZON, as Presiding Judge of the Court of First Instance of Bataan,
and EDGARDO GENER, respondents.
Sycip, Salazar, Luna Manalo & Feliciano for petitioner.
A. E. Dacanay for private respondent.
Office of the Solicitor General Camilo D. Quiason as amicus curiae.

FERNANDO, J.:p
There is nothing novel about the question raised in this certiorari proceeding against the
then Judge Tito V. Tizon, filed by petitioner Donald Baer, then Commander of the United
States Naval Base, Subic Bay, Olongapo, Zambales, seeking to nullify the orders of
respondent Judge denying his motion to dismiss a complaint filed against him by the
private respondent, Edgardo Gener, on the ground of sovereign immunity of a foreign
power, his contention being that it was in effect a suit against the United States, which
had not given its consent. The answer given is supplied by a number of cases coming
from this Tribunal starting from a 1945 decision, Raquiza v. Bradford 1 to Johnson v.
Turner, 2 promulgated in 1954. The doctrine of immunity from suit is of undoubted
applicability in this jurisdiction. It cannot be otherwise, for under the 1935 Constitution,
as now, it is expressly made clear that the Philippines "adopts the generally accepted
principles of international law as part of the law of the Nation." 3 As will subsequently be
shown, there was a failure on the part of the lower court to accord deference and
respect to such a basic doctrine, a failure compounded by its refusal to take note of the
absence of any legal right on the part of petitioner. Hence, certiorari is the proper
remedy.
The facts are not in dispute. On November 17, 1964, respondent Edgardo Gener, as
plaintiff, filed a complaint for injunction with the Court of First Instance of Bataan against
petitioner, Donald Baer, Commander of the United States Naval Base in Olongapo. It

was docketed as Civil Case No. 2984 of the Court of First Instance of Bataan. He
alleged that he was engaged in the business of logging in an area situated in Barrio
Mabayo, Municipality of Morong, Bataan and that the American Naval Base authorities
stopped his logging operations. He prayed for a writ of preliminary injunction restraining
petitioner from interfering with his logging operations. A restraining order was issued by
respondent Judge on November 23, 1964. 4 Counsel for petitioner, upon instructions of
the American Ambassador to the Philippines, entered their appearance for the purpose
of contesting the jurisdiction of respondent Judge on the ground that the suit was one
against a foreign sovereign without its consent. 5 Then, on December 12, 1964,
petitioner filed a motion to dismiss, wherein such ground was reiterated. It was therein
pointed out that he is the chief or head of an agency or instrumentality of the United
States of America, with the subject matter of the action being official acts done by him
for and in behalf of the United States of America. It was added that in directing the
cessation of logging operations by respondent Gener within the Naval Base, petitioner
was entirely within the scope of his authority and official duty, the maintenance of the
security of the Naval Base and of the installations therein being the first concern and
most important duty of the Commander of the Base. 6 There was, on December 14,
1964, an opposition and reply to petitioner's motion to dismiss by respondent Gener,
relying on the principle that "a private citizen claiming title and right of possession of
certain property may, to recover possession of said property, sue as individuals, officers
and agents of the Government, who are said to be illegally withholding the same from
him, though in doing so, said officers and agents claim that they are acting for the
Government." That was his basis for sustaining the jurisdiction of respondent Judge. 7
Petitioner, thereafter, on January 12, 1965, made a written offer of documentary
evidence, including certified copies of telegrams of the Forestry Director to Forestry
personnel in Balanga, Bataan dated January 8, and January 11, 1965, directing
immediate investigation of illegal timber cutting in Bataan and calling attention to the
fact that the records of the office show no new renewal of timber license or temporary
extension permits. 8 The above notwithstanding, respondent Judge, on January 12,
1965, issued an order granting respondent Gener's application for the issuance of a writ
of preliminary injunction and denying petitioner's motion to dismiss the opposition to the
application for a writ of preliminary injunction. 9
A motion for reconsideration having proved futile, this petition for certiorari was filed with
this Court. The prayer was for the nullification and setting aside of the writ of preliminary
injunction issued by respondent Judge in the aforesaid Civil Case No. 2984 of the Court
of First Instance of Bataan. A resolution of March 17, 1965 was issued by this Court
requiring respondents to file an answer and upon petitioner's posting a bond of
P5,000.00 enjoining them from enforcing such writ of preliminary injunction. The answer
was duly forthcoming. It sought to meet the judicial question raised by the legal
proposition that a private citizen claiming title and right of possession of a certain
property may, to recover the same, sue as individuals officers and agents of the
government alleged to be illegally withholding such property even if there is an assertion
on their part that they are acting for the government. Support for such a view is found in
the American Supreme Court decisions of United States v. Lee 10 and Land v. Dollar. 11
Thus the issue is squarely joined whether or not the doctrine of immunity from suit

without consent is applicable. Thereafter, extensive memoranda were filed both by


petitioner and respondents. In addition, there was a manifestation and memorandum of
the Republic of the Philippines as amicus curiae where, after a citation of American
Supreme Court decisions going back to Schooner Exchange v. M'faddon, 12 an 1812
decision, to United States v. Belmont, 13 decided in 1937, the plea was made that the
petition for certiorari be granted..
A careful study of the crucial issue posed in this dispute yields the conclusion, as
already announced, that petitioner should prevail.
1. The invocation of the doctrine of immunity from suit of a foreign state without its
consent is appropriate. More specifically, insofar as alien armed forces is concerned,
the starting point is Raquiza v. Bradford, a 1945 decision. 14 In dismissing a habeas
corpus petition for the release of petitioners confined by American army authorities,
Justice Hilado, speaking for the Court, cited from Coleman v. Tennessee, 15 where it was
explicitly declared: "It is well settled that a foreign army, permitted to march through a
friendly country or to be stationed in it, by permission of its government or sovereign, is
exempt from the civil and criminal jurisdiction of the place." 16 Two years later, in Tubb
and Tedrow v. Griess, 17 this Court relied on the ruling in Raquiza v. Bradford and cited in
support thereof excerpts from the works of the following authoritative writers: Vattel,
Wheaton, Hall, Lawrence, Oppenhein, Westlake, Hyde, and McNair and Lauterpacht. 18
Accuracy demands the clarification that after the conclusion of the Philippine-American
Military Bases Agreement, the treaty provisions should control on such matter, the
assumption being that there was a manifestation of the submission to jurisdiction on the
part of the foreign power whenever appropriate. 19 More to the point is Syquia v. Almeda
Lopez, 20 where plaintiffs as lessors sued the Commanding General of the United States
Army in the Philippines, seeking the restoration to them of the apartment buildings they
owned leased to United States armed forces stationed in the Manila area. A motion to
dismiss on the ground of non-suability was filed and upheld by respondent Judge. The
matter was taken to this Court in a mandamus proceeding. It failed. It was the ruling that
respondent Judge acted correctly considering that the "action must be considered as
one against the U.S. Government." 21 The opinion of Justice Montemayor continued: "It
is clear that the courts of the Philippines including the Municipal Court of Manila have no
jurisdiction over the present case for unlawful detainer. The question of lack of
jurisdiction was raised and interposed at the very beginning of the action. The U.S.
Government has not given its consent to the filing of this suit which is essentially against
her, though not in name. Moreover, this is not only a case of a citizen filing a suit against
his own Government without the latter's consent but it is of a citizen filing an action
against a foreign government without said government's consent, which renders more
obvious the lack of jurisdiction of the courts of his country. The principles of law behind
this rule are so elementary and of such general acceptance that we deem it
unnecessary to cite authorities in support thereof." 22 Then came Marvel Building
Corporation v. Philippine War Damage Commission, 23 where respondent, a United
States agency established to compensate damages suffered by the Philippines during
World War II was held as falling within the above doctrine as the suit against it "would
eventually be a charge against or financial liability of the United States Government

because ..., the Commission has no funds of its own for the purpose of paying money
judgments." 24 The Syquia ruling was again explicitly relied upon in Marquez Lim v.
Nelson, 25 involving a complaint for the recovery of a motor launch, plus damages, the
special defense interposed being "that the vessel belonged to the United States
Government, that the defendants merely acted as agents of said Government, and that
the United States Government is therefore the real party in interest." 26 So it was in
Philippine Alien Property Administration v. Castelo, 27 where it was held that a suit
against the Alien Property Custodian and the Attorney General of the United States
involving vested property under the Trading with the Enemy Act is in substance a suit
against the United States. To the same effect is Parreno v. McGranery, 28 as the
following excerpt from the opinion of Justice Tuason clearly shows: "It is a widely
accepted principle of international law, which is made a part of the law of the land
(Article II, Section 3 of the Constitution), that a foreign state may not be brought to suit
before the courts of another state or its own courts without its consent." 29 Finally, there
is Johnson v. Turner, 30 an appeal by the defendant, then Commanding General,
Philippine Command (Air Force, with office at Clark Field) from a decision ordering the
return to plaintiff of the confiscated military payment certificates known as scrip money.
In reversing the lower court decision, this Tribunal, through Justice Montemayor, relied
on Syquia v. Almeda Lopez, 31 explaining why it could not be sustained.
The solidity of the stand of petitioner is therefore evident. What was sought by private
respondent and what was granted by respondent Judge amounted to an interference
with the performance of the duties of petitioner in the base area in accordance with the
powers possessed by him under the Philippine-American Military Bases Agreement.
This point was made clear in these words: "Assuming, for purposes of argument, that
the Philippine Government, through the Bureau of Forestry, possesses the "authority to
issue a Timber License to cut logs" inside a military base, the Bases Agreement
subjects the exercise of rights under a timber license issued by the Philippine
Government to the exercise by the United States of its rights, power and authority of
control within the bases; and the findings of the Mutual Defense Board, an agency of
both the Philippine and United States Governments, that "continued logging operation
by Mr. Gener within the boundaries of the U.S. Naval Base would not be consistent with
the security and operation of the Base," is conclusive upon the respondent Judge. .. The
doctrine of state immunity is not limited to cases which would result in a pecuniary
charge against the sovereign or would require the doing of an affirmative act by it.
Prevention of a sovereign from doing an affirmative act pertaining directly and
immediately to the most important public function of any government - the defense of
the state is equally as untenable as requiring it to do an affirmative act." 32 That such
an appraisal is not opposed to the interpretation of the relevant treaty provision by our
government is made clear in the aforesaid manifestation and memorandum as amicus
curiae, wherein it joined petitioner for the grant of the remedy prayed for.
2. There should be no misinterpretation of the scope of the decision reached by this
Court. Petitioner, as the Commander of the United States Naval Base in Olongapo,
does not possess diplomatic immunity. He may therefore be proceeded against in his
personal capacity, or when the action taken by him cannot be imputed to the

government which he represents. Thus, after the Military Bases Agreement, in


Miquiabas v. Commanding General 33 and Dizon v. The Commanding General of the
Philippine-Ryukus Command, 34 both of them being habeas corpus petitions, there was
no question as to the submission to jurisdiction of the respondents. As a matter of fact,
in Miquiabas v. Commanding General, 35 the immediate release of the petitioner was
ordered, it being apparent that the general court martial appointed by respondent
Commanding General was without jurisdiction to try petitioner. Thereafter, in the cited
cases of Syquia, Marquez Lim, and Johnson, the parties proceeded against were
American army commanding officers stationed in the Philippines. The insuperable
obstacle to the jurisdiction of respondent Judge is that a foreign sovereign without its
consent is haled into court in connection with acts performed by it pursuant to treaty
provisions and thus impressed with a governmental character.
3. The infirmity of the actuation of respondent Judge becomes even more glaring when
it is considered that private respondent had ceased to have any right of entering within
the base area. This is made clear in the petition in these words: "In 1962, respondent
Gener was issued by the Bureau of Forestry an ordinary timber license to cut logs in
Barrio Mabayo, Morong, Bataan. The license was renewed on July 10, 1963. In 1963,
he commenced logging operation inside the United States Naval Base, Subic Bay, but
in November 1963 he was apprehended and stopped by the Base authorities from
logging inside the Base. The renewal of his license expired on July 30, 1964, and to
date his license has not been renewed by the Bureau of Forestry. .. In July 1964, the
Mutual Defense Board, a joint Philippines-United States agency established pursuant to
an exchange of diplomatic notes between the Secretary of Foreign Affairs and the
United States Ambassador to provide "direct liaison and consultation between
appropriate Philippine and United States authorities on military matters of mutual
concern,' advised the Secretary of Foreign Affairs in writing that: "The enclosed map
shows that the area in which Mr. Gener was logging definitely falls within the boundaries
of the base. This map also depicts certain contiguous and overlapping areas whose
functional usage would be interfered with by the logging operations.'" 36 Nowhere in the
answer of respondents, nor in their memorandum, was this point met. It remained
unrefuted.
WHEREFORE, the writ of certiorari prayed for is granted, nullifying and setting aside the
writ of preliminary injunction issued by respondent Judge in Civil Case No. 2984 of the
Court of First Instance of Bataan. The injunction issued by this Court on March 18, 1965
enjoining the enforcement of the aforesaid writ of preliminary injunction of respondent
Judge is hereby made permanent. Costs against private respondent Edgardo Gener.
Zaldivar, Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., took no part.

Footnotes

1 75 Phil. 50.
2 94 Phil. 807. The other cases from Raquiza v. Bradford follow: Tubb and
Tedrow v. Griess, 78 Phil. 249 (1947); Miquiabas v. Commanding General,
80 Phil. 262 (1948); Dizon v. Phil. Ryukus Command, 81 Phil. 286 (1948);
Syquia v. Almeda Lopez, 84 Phil. 312 (1949); Marvel Building Corp. v.
Philippine War Damage Commission, 85 Phil. 27 (1949); Marquez Lim v.
Nelson, 87 Phil. 328 (1950); Philippine Alien Property Administration v.
Castelo, 89 Phil. 568 (1951); Parreno v. McGranery, 92 Phil. 791 (1953).
3 According to Article II, Sec. 3 of the 1935 Constitution: "The Philippines
renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the
Nation." The same provision is found in the present Constitution, Article II,
Sec. 3, reading thus: "The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations."
4 Petition, par. 2(a) and (b).
5 Ibid, par. 2(d).
6 Ibid, par. 2(e).
7 Ibid, par. 2(f).
8 Ibid, par. 2(i).
9 Ibid, par. 2(j).
10 106 US 196 (1882).
11 330 US 731 (1947).
12 7 Cranch 116..
13 301 US 324.
14 75 Phil. 50.
15 97 US 509 (1879).
16 75 Phil. 50, 60.
17 78 Phil. 249 (1947).

18 Ibid, 252-254.
19 Cf. People v. Acierto, 92 Phil. 534 (1953) and People v. Gozo, L36409,Oct. 26, 1973, 53 SCRA 476.
20 84 Phil. 312 (1949).
21 Ibid, 323.
22 Ibid.
23 85 Phil. 27 (1949).
24 Ibid, 32.
25 87 Phil. 328 (1950).
26 Ibid, 329.
27 89 Phil. 568 (1951).
28 92 Phil. 791 (1953).
29 Ibid, 792. The excerpt continues with a reference to the Syquia, Marvel
Building Corporation, and Marquez Lim decisions.
30 94 Phil. 807 (1954).
31 84 Phil. 312 (1949).
32 Petition, paragraph 2 (2).
33 80 Phil. 262 (1948).
34 81 Phil. 286 (1948).
35 80 Phil. 262 (1948).
36 Petition, paragraph 3.